Opinion
No. 4-06-00047-CR
Delivered and Filed: November 15, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 9, Bexar County, Texas, Trial Court No. 908132, Honorable Oscar Kazen, Judge Presiding. Affirmed.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
A jury convicted Daniel Gonzalez of driving while intoxicated (DWI). On appeal, Gonzalez challenges the sufficiency of the evidence to support his conviction and contends the jury should have been charged on the offense of public intoxication. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion. 1. Gonzalez first argues that the evidence is insufficient to establish that he operated his car. A person "operates" a motor vehicle if the totality of the circumstances demonstrates that he took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use. Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995). Although driving involves operation, operation does not necessarily involve driving. Id. at 389. Gonzalez argues that his out-of-court statements to the officers admitting he was the driver of the car are insufficient to support his conviction unless they are corroborated by other evidence. See Threet v. State, 250 S.W.2d 200, 200 (Tex.Crim.App. 1952) (holding that a defendant's extrajudicial confession alone does not authorize a conviction for driving while intoxicated). However, the rule established in Threet does not apply to a judicial confession, which is a confession made during a judicial proceeding while testifying as a witness. Fancher v. State, 319 S.W.2d 707, 708 (Tex.Crim.App. 1958). Here, Gonzalez admitted at trial that he drove the car. Thus, his judicial confession can be considered without further corroboration. Even if further corroboration were necessary, the record contains such corroboration because there is evidence showing that Gonzalez was the only person found at the scene of the accident, that he provided proof of automobile insurance that matched the car at the scene, and that he did not challenge the officers' belief that he was the driver of the car. See Fancher, 319 S.W.2d at 708 (holding that defendant's presence at scene of accident and ownership of vehicle were sufficient to corroborate extrajudicial confession); Rawls v. State, 318 S.W.2d 662, 663 (Tex.Crim.App. 1958) (holding that defendant's failure to challenge statement or implication that he was driver of car was sufficient to corroborate extrajudicial confession). 2. Gonzalez next contends that the evidence is insufficient to establish that he was intoxicated while he was driving because no one saw him driving the car, the engine was not running and he was not behind the wheel of the car when the officer arrived on the scene. However, such evidence is not necessary to establish that he was driving while intoxicated. See Fancher, 319 S.W.2d at 708 (conviction upheld where defendant was one of two men standing beside overturned vehicle when officers arrived); Layland v. State, 144 S.W.3d 647, 649 (Tex.App.-Beaumont 2004, no pet.) (conviction upheld where defendant's car found in ditch and defendant's husband only person at scene of accident when officers arrived). Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support Gonzalez's conviction. The officer testified that he saw back-up lights on Gonzalez's car when he first passed the car; that after turning around and heading north on Highway 37, it took him only a few minutes to push a stalled truck off the road before he returned to Gonzalez's car; and that once he was at the scene, he touched the hood of Gonzalez's car and felt that it was still warm. Gonzalez admitted on the stand that he was driving his car that night, and he does not dispute that he was intoxicated when the officer arrived on the scene. Considering this evidence, we conclude that a rational juror could find Gonzalez was intoxicated while driving. We also hold that the evidence is factually sufficient to support the verdict. Gonzalez provided much of the evidence contrary to the verdict when he testified at trial that he became intoxicated only after the accident occurred. Gonzalez testified that he consumed three 24-ounce cans of beer while waiting for help after his front tire blew out, causing him to lose control of his car and crash into a guardrail. The jury was free to disbelieve Gonzalez's testimony. See Layland, 144 S.W.3d at 651 (stating that jury could rationally disregard testimony of defendant's husband stating that defendant consumed alcohol after accident). Gonzalez's sufficiency challenge is overruled. 3. Gonzalez finally contends that the trial court erred in denying his request to charge the jury on the offense of public intoxication. Specifically, Gonzalez argues that section 49.02(d) of the Texas Penal Code, which states that the offense of public intoxication is not a lesser included offense of DWI, violates the due process clauses of the United States and Texas Constitutions. Tex. Pen. Code Ann. § 49.02(d) (Vernon 2003). However, we need not address the constitutionality of the statute because even if the statute were unconstitutional, public intoxication would still not be a lesser included offense of DWI. In determining whether an offense is lesser included, we examine: (1) the elements of the offense actually charged; (2) the statutory elements of the proposed lesser included offense; and (3) the proof presented at trial to show the elements of the charged offense. Jacob v. State, 892 S.W.2d 905, 907-08 (Tex.Crim.App. 1995). The elements of driving while intoxicated are: (1) a person (2) is intoxicated (3) while operating a motor vehicle (4) in a public place. See Tex. Pen. Code Ann. § 49.04(a); Galvan v. State, 995 S.W.2d 764, 766 (Tex.App.-San Antonio 1999, no pet.). The elements of public intoxication are: (1) a person (2) appears in a public place (3) while intoxicated (4) to the degree that he may endanger himself or another. See Tex. Pen. Code Ann. § 49.02(a); Domingo v. State, 82 S.W.3d 617, 620 (Tex.App.-Amarillo 2002, no pet.). Public intoxication is not a lesser included offense of DWI because public intoxication requires proof of an element not required for DWI: that the defendant is intoxicated to a degree at which he may endanger himself or another. Thus, to prove public intoxication, the State would have to prove facts that it does not have to prove to establish DWI. Gonzalez also argues that the trial court erred in refusing to charge the jury on both DWI and public intoxication as separate offenses. However, Gonzalez does not cite any case law or other legal authority to support his position. Under Texas Rule of Appellate Procedure 38.1, an appellant's brief must cite authority in support of the issues raised. See Tex.R.App.P. 38.1(h). Failure to cite authority on an issue waives that issue. See Keever v. Finlan, 988 S.W.2d 300, 314 (Tex.App.-Dallas 1999, pet. dism'd); see also Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Because Gonzalez does not cite any authority in support of his argument, he has failed to preserve this issue for our review.